It is important that women contemplating remarriage obtain proper legal advice. In each province there are laws that define and set out the legal liabilities, responsibilities, and rights created between the parties upon marriage. It is not usually necessary for persons contemplating marriage for the first time to obtain legal advice. In such cases, the couple is often young with few assets and no dependents except each other. In a second marriage, however, you and your spouse may have significant assets and there may be children from the previous marriage or relationship for whom there is a legal obligation to provide.
There are two major areas of concern that arise with remarriages and pre-existing wills. The first relates to the inheritance laws. Upon marriage, all existing wills are automatically revoked by operation of law. A number of problems could arise if you or your spouse were to die without a valid will shortly after remarriage. In such a situation, the surviving spouse would, by law, inherit all or, if there are children of a previous marriage, most of the deceased spouse’s estate under the Intestate Succession Act and there would be little or no benefit to other next-of-kin. These problems can be avoided if you and your partner execute wills in contemplation of, or immediately after, marriage. The law requires that upon death adequate provisions be made for the maintenance of a dependent, surviving spouse. This can be established by setting up spousal trusts in which the surviving spouse would enjoy the use and benefit of certain assets of the estate until death or remarriage, whereupon those assets would then flow back to the children from the first marriage or other next of kin.
A second major area of concern relates to property claims and rights of the parties created by the marriage. The Matrimonial Property Act of Alberta provides that property accumulated during marriage must be equally divided between you and your spouse upon marriage breakdown, unless unusual circumstances exist.
If you and your partner are contemplating marriage, you may wish to obtain independent legal advice and enter into a prenuptial agreement, or marriage contract. Each of you can then set up your own rules regarding the distribution of matrimonial property upon marriage breakdown. It is particularly important that a marriage contract set out, in detail, the property and net worth of each of you at the time of the marriage, as that property remains exempt from distribution or claims by the other spouse (so long as it is not put in joint names). However, any increase in the value of that property during the marriage is not exempt and must be dealt with specifically in the marriage contract. Releases of dower rights, estate claims, and spousal support may also be included in the marriage contract, but may be disallowed by the court if independent legal advice is not obtained by each of you at the time the marriage contract is executed. (More information about this is provided in the section on Matrimonial Property.)